WALTER WAGBATSOMA VS FEDERAL REPUBLIC OF NIGERIA (2018)

WALTER WAGBATSOMA v. FEDERAL REPUBLIC OF NIGERIA

In The Supreme Court of Nigeria

On Friday, the 9th day of February, 2018

SC.517/2015

 

JUSTICES

MUSA DATTIJO MUHAMMAD    Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN    Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO    Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE    Justice of The Supreme Court of Nigeria

EJEMBI EKO    Justice of The Supreme Court of Nigeria

Between

 

WALTER WAGBATSOMA  Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA  Respondent(s)

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The appellant in this appeal and four other defendants were arraigned, on Information, before the High Court of Lagos State for the offences of obtaining money by false pretence under Section 1 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006; forgery and uttering under the Criminal Code, Cap. C17, Laws of Lagos State of Nigeria, 2003 and conspiracy to commit the said offences.

Sequel to their non-guilty plea, the case went to trial. The Prosecutions case was woven around the testimonies of twelve witnesses and seventy-one exhibits. At the end of the prosecutions case, the appellant and the other defendants, by their No Case Submission, contended that the Prosecution failed to make out a prima facie case against them; worse still, that the said High Court (hereinafter, simply, referred to as the trial Court) had no jurisdiction to entertain the case having regard to Sections 251 (1) of the Constitution of the Federal Republic of Nigeria, (as amended) (hereinafter, simply, referred to as the Constitution) and

 

1

Section 1, 2 and 19 of the Admiralty Jurisdiction Act, [AJA].

In its Ruling, the trial Court dismissed the No Case Submission. It held that it had the requisite jurisdiction to try the offences of obtaining property by false pretences, forgery, uttering and conspiracy. It proceeded to strike down the provisions of Section 19 of the AJA. The appellants appeal to the Court of Appeal, Lagos Division, (hereinafter, simply, called the lower Court) was unsuccessful. The lower Court, however, found that, in striking down Section 19 of the AJA, the Ruling breached the appellants right to fair hearing. It nevertheless, declined to set aside the ruling of the trial Court.

Aggrieved by the said judgment of the lower Court, the appellant approached this Court entreating it to resolve his three issues couched thus:
1. Having regard to the lower Courts finding that the trial Court breached the principle of fair hearing in striking down Section 19 of the Admiralty Jurisdiction Act, whether the lower Court was not in grave error and so acted without jurisdiction when it thereafter failed to set aside the trial

 

2

Courts Ruling
2. Having regard to the clear provisions of Section 251 (1) (a), (g), (n), (s) and (3) of the Constitution, Section 8 (1) of the Federal High Court Act (FHC Act), Sections 1, 2, 19 and 25 of the AJA vis-a-vis the information preferred against the appellant at the trial Court, as well as the evidence adduced by the Prosecution, whether the lower Court was not in grave error in holding that the trial Court rightly assumed jurisdiction on the Information dated 20th July 2012
3. Whether the lower Court was not in error when it failed to be bound and to follow the decision of this Honourable Court in George v FRN [2014] 5 NWLR (pt 1399) 1 and its own decisions in Okey Nwosu v FRN – Appeal No: CA/L/601/11 delivered on 21st November, 2013 and Akingbola v FRN – Appeal No: CA/L/490/14 delivered on 31st December, 2014

On his part, learned senior counsel for the respondent, Rotimi Jacobs, SAN, subsumed the above three issues into only one which he framed thus:
Whether the Court of Appeal was not right in upholding the decision of the High Court of Lagos State that it had the jurisdiction to entertain the Information

 

3

contained in Charge No: ID/115C/2012 bordering on the offences of obtaining money by false pretence under the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, forgery, uttering and conspiracy under Sections 467 and 468 of the Criminal Code Cap. C17, volume 2, Laws of Lagos State, Nigeria, 2003

The respondents approach notwithstanding, this appeal would be determined based on the issues which the appellant set out above. However, the consideration of issues two and three would abide the determination of the first issue. If this issue [issue one] is resolved in his favour, there would no need broaching the other issues.

ARGUMENTS ON THE ISSUES
CONTENTION OF THE APPELLANT
ISSUE ONE
1. Having regard to the lower Courts finding that the trial Court breached the principle of fair hearing in striking down Section 19 of the Admiralty Jurisdiction Act, whether the lower Court was not in grave error and so acted without jurisdiction when it thereafter failed to set aside the trial Courts Ruling

At the hearing of this appeal on November 15, 2017, counsel for the appellant, Yusuf Asamah

 

4

Kadiri adopted the Amended Appellants brief filed on November 8, 2017, although, deemed properly filed and served on November 15, 2017. And the Reply Brief filed on October 23, 2017. He set out the order of the lower Court at page 2318 of the record wherein the Court only set aside the part of the decision of the trial Court that struck down Section 19 of the AJA without hearing from the parties.

He contended that the finding of the lower Court ought to have resulted in the setting aside of the entire decision of the trial Court, Dingyadi v INEC [2011] 18 NWLR (pt 1224) 1, 53 -54; Agbiti v Nigerian Navy [2011] 4 NWLR (Pt 1236) 175, 216; Nyesom v Peterside and Ors (2016) LPELR -40036 (SC). In his submission, parties are not entitled to waive a breach of the right to fair hearing, Menakaya v Menakaya [2001] 16 NWLR (Pt 738) 303, 236; Ariori v Elemo [1983] 1 SCNLR 1, 28.

He maintained that once there is a breach of the said right to fair hearing, the entire proceedings become vitiated, Danladi v Dangiri [2014] 11 SC 1, 75; Olumesan v Ogundepo [1996] 2 NWLR (pt 433) 628, 645; Idakwo v Ejiga [2002] 13 NWLR (pt 783) 156, 165 – 166; PAI Incorp v

5

SL Ltd [2010] 6 NWLR (Pt.1189) 98, 109 -110.

He submitted that, having found that the decision of the trial Court occasioned a breach of the right to fair hearing, the lower Court was under obligation to set aside the entire decision of the trial Court, it being immaterial whether the decision had any effect on the final decision of the trial Court, Olumesan v Ogundepo (supra); Idakwo v Ejiga (supra).

He contended that the issue of Section 19 of the AJA was inextricably, tied to the application before the trial Court as well as the appeal before the lower Court, citing pages 2109 -2128 of the record for the Amended Notice of Appeal from the trial Court to the lower Court. He pointed out that Grounds 2 and 5 were anchored on Section 19 of the AJA; also, issue one in the Amended Brief of Argument, pages 2177 – 2217 of the record; and the appellants application at the trial Court, written addresses in support of the application, pages 1705 – 1782; 1864 – 1901, respectively, of the record, which showed that the issue of Section 19 (supra) was intrinsic to the application which the trial Court was called upon to make a

 

6

decision.

He explained that, although the lower Court found that the trial Court breached the appellants right to fair hearing, it still declined to set aside the said decision of the trial Court, an approach which he found to be wrong, AG, Rivers State v Ude (2006) LPELR -626 (SC). He maintained that, by the said finding, the lower Court itself had no more jurisdiction to proceed with the matter, Odofin v Agu [1992] 23 NSCC (pt.1) 520, 532; Obi v INEC [2007] 11 NWLR (pt 1046) 560, 628 – 629.

In his submission, the only option open to the lower Court, sequel to its finding that there was a breach of the appellants right to fair hearing, was to set aside the decision complained against. He canvassed the view that, by declining to set aside the ruling of the trial Court which had breached the appellants right, the lower Court was in itself, in breach of the appellants right to fair hearing.Amoo v Alabi [2003] 15 NSCQLR 132, 144; Gafar v Government of Kwara State [2007] All FWLR (pt 360) 1415, 1440; Buhari v INEC [2008] 19 NWLR (pt 1120) 246, 402; FBN v Abraham [2008] 18 NWLR (pt 1118) 172,

 

7

190.

RESPONDENTS ARGUMENTS
On his part, Learned Senior Counsel for the respondent, Rotimi Jacobs, SAN, adopted the respondents brief which was filed on June 28, 2017, although, deemed properly filed and served on November 15, 2017.

He explained that, at the High Court, the appellant had contended that the charges against him had to do with admiralty matters. The trial Court, he observed, ruled that the charge was not an admiralty matter and that Section 19 of the AJA could not take away the jurisdiction of the State High Court. It therefore struck down the section.

He noted that, placing reliance on such decisions like Petro Jessica v Leventist Technical Co Ltd [1992] (sic) NWLR (pt 244) 675; Aluminium Manufacturing Co Ltd v NPA [1987] (sic) NWLR (pt 51) 475; American International Inc v Ceekay Traders Ltd [1981] 5 SC 50, the lower Court upheld the trial Courts decision. He drew attention to page 3218 of the record where the lower Court, having found that the trial Court suo motu raised the issue of the applicability of Section 19 (supra), held that it was wrong and set aside that part of the decision of

 

8

the trial Court that struck down Section 19 (supra).

Learned senior counsel contended that, the lower Court having affirmed the trial Courts decision that the said charge was not on admiralty, held that there was no need for the trial Court to consider Section 19 (supra). The decision of the lower Court, according to him, was that the order striking out Section 19 (supra) was merely an academic exercise.

He maintained that the trial Courts decision on Section 19 (supra) was clearly unnecessary since it had found that the appellants case did not fall within the AJA. In his submission, whatever opinion which the trial Court rendered after its finding on Section 19 (supra) was a mere obiter dictum and an academic exercise. He contended that parties are not permitted to appeal mere obita dicta, Saraki V. Kotoye [1992] 9 NWLR (Pt.262) 154; Nasiru v Bindawa [2006] 1 NWLR (pt 961) 355, 371 -372.

Finally, on this issue, he urged the Court to hold that not every mistake that would lead to the reversal of a judgment, Chukwuma v FRN [2001] 13 NWLR (Pt.1264) 391, 420 – 421; Solola v State [2005] 2 NWLR (pt 937) 460, 485. In his

 

9

submission, the decision of the trial Court on Section 19 of the AJA cannot be regarded as a substantial issue that could occasion a miscarriage of justice.

APPELLANTS REPLY
As indicated earlier, learned counsel for the appellant equally adopted the appellants Reply brief. In the said reply brief, he responded to the issues as follows;
In the first place, he contended that the trial Courts decision, striking out Section 19 (supra), was part of the ratio decidendi and not an obiter dictum, as the respondents senior counsel argued, Omoniyi v Alabi [2015] 6 NWLR (pt 1456) 572, 589 – 591; E  B. He pointed out that the lower Court faulted the said decision on the ground that it was raised suo motu, without any invitation to address on it before striking down the said Section 19: an action described as coming from the blues. He argued that the lower Courts reasons formed the bedrock upon which the appellants right to fair hearing was determined.

Citing Ogbolosingha v BSIEC [2015] 6 NWLR (pt.1455) 311, 343; A -H, he contended that the ratio decidendi in a case is not

 

10

determined from isolated dicta in a judgment but on the consideration of the issues in the dispute between the parties and the facts pleaded. He pointed out that parties joined issues on the admiralty jurisdiction at the trial Court.
The appellants position was that admiralty matters were within the exclusive jurisdiction of the Federal High Court. He observed that the appellants first issue for determination at the trial Court was based on the propriety or otherwise of the Court striking out Section 19 (supra): an issue, he argued was valid and sustainable in law.

He re-iterated the submission that the trial Courts failure to invite parties to address it on the issue it raised suo motu amounted to a breach of the appellants right to fair hearing and therefore occasioned a grave miscarriage of justice, Ogwe v IGP [2015] 7 NWLR (pt 1459) 505, 530; Olaolu v FRN [2016] 3 NWLR (pt 1498) 133, 155; 165.

He finally contended that the lower Court having found that the striking down of Section 19 (supra) was an affront on the appellants right to fair hearing, it was a contradiction for the lower Court to hold

 

11

that the charge did not relate to admiralty.

RESOLUTION OF THE ISSUE
As shown above, at the trial Court, the appellant, by Motion on Notice, [pages 1705 et seq] beseeched the Court with an application to acquit and discharge him on the Information dated July 20, 2012 on the ground, inter alia, that:
i. On the aggregate of the contents of the Information itself, the evidence adduced, the materials produced, vis–vis the Constitution and extant laws, this Honourable Court lacks the vires to countenance and/or adjudicate on the Information.

The Grounds of the application were set out on page 1706 of the record. In Ground iii, the applicant contended that:
The entire Nine Counts: Count Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9 all relate to matters over which it is only the Federal High Court that has exclusive jurisdiction under Section 251 (1) (a) (g) (n) and (3) of the 1999 Constitution, Section 8 (1) of the Federal High Court Act and Section 1 (1) and (2) and 19 of the Admiralty Jurisdiction Act, Cap. A. 5 LFN, 2004.
[Italics supplied for emphasis]

Extensive arguments were canvassed by the appellant and the

 

12

respondent in their written submissions on this issue, among others. In its Ruling, [pages 1958 – 1981 of Volume IV of the record], the trial Court dealt with the submissions of counsel. It dismissed the appellants application. However, at page 1968 of the said record, it introduced a fresh perspective to the application.

After its lengthy consideration of the effect of Section 251 of the Constitution (supra), it proceeded thus:
Section 19 of the Admiralty Jurisdiction Act however appears to widen the scope of Section 252 (3) [supra] by seemingly conferring exclusive jurisdiction on the Federal High Court when it comes to admiralty causes or matters of a criminal kind…
But even if I were wrong in this regard, I believe that this provision (Section 19 of the Admiralty Jurisdiction Act) is inconsistent with the words of the Constitution and would then be struck down to the extent of that inconsistency… [page 1968 of the record; italics supplied for emphasis].

Aggrieved by this development, the appellant approached the lower Court. In Ground Five of his Notice and Grounds of Appeal, he alleged that the trial Court erred

 

13

in the above view. Particulars (iv) (v) and (vi) of the Particulars of Error, [page 2115 of Volume V of the record], were devoted to this complaint. According to the appellant:
(iv) The issue of inconsistency of Section 19 of the AJA with the Constitution was raised and determined suo motu by the learned trial Judge;
(v) Further to (iv) supra/ the appellant was not afforded an opportunity to be heard thereon before the said section was struck down;
(vi) [The] Attorney General of the Federation was neither a party at the lower Court [that is, trial Court] nor joined at any material time when the trial Court struck down Section 19 of the Admiralty Jurisdiction Act.

In his submission, at page 2189 of the record, the appellant invited the lower Court to view the above position of the trial Court as:
…ultra vires and unconstitutional. It thus appear (sic) that the lower Court saw Section 19 of the Admiralty Jurisdiction Act as an obstacle to its acquisition of jurisdiction, thus, striking it down suo motu, without asking for counsels address on it, thus denying the appellant of the right to fair hearing, Finnih v Imade [1992]

 

14

1 NWLR (Pt 219) 511, 537; Ejezie v Anuwu [2008] All FWLR (Pt 422) 1005, 1049. In addition, the lower Court [that is, the trial Court] has no jurisdiction, power or vires to strike down an Act of the National Assembly in a matter in which neither the Attorney General of the Federation nor the National Assembly is a party or heard, Peenok Investment Ltd v Hotel Presidential [1983] 4 NCLR 122, 163. More fundamentally, it has been demonstrated  that Section 19 of the Act is very consistent with Section 251 (1) (g) (supra).

The lower Court essentially agreed with the appellants submission that the trial Court was wrong to have raised the issue of Section 19 (supra) suo motu; resolved it and struck it down without any input from counsel. It first pointed out that:
The learned trial Judge struck out Section 19 of the Admiralty Jurisdiction Act, 1991. The [Act] is an existing law which by virtue of Section 315 (1) of the 1999 Constitution is recognised. The 1999 Constitution took into account this law when it provided for the admiralty jurisdiction therefore, it cannot be correct that Section 19 [supra] is contrary to the

 

15

intendment of Section 251 (3) of the 1999 Constitution. It recognises the criminal jurisdiction in admiralty cases.
[page 2317 of Volume v of the record]

At page 2318 of Volume V of the record, the lower Court, in agreeing with the above submissions, held that the trial Courts view on Section 19 (supra):
…was done by the Court suo motu which violates the principle of fair hearing….Counsel were not invited to address the Court before the striking down was down. It was done from the blues so to speak. Therefore, it cannot be allowed to stand. In this regard, I set aside that part of the decision striking down Section 19 of the Admiralty Jurisdiction Act, 1991.
[Italics supplied for emphasis]

This was what provoked the submission before this Court that the above finding [of the lower Court] ought to have resulted in the setting aside of the entire decision of the trial Court, [paragraph 4.2; page 4 of the Amended Appellants brief].

As shown above, learned senior counsel for the respondent took the view that the trial Courts view was a mere obiter dictum. Before

 

16

proceeding further, it would be necessary to dispose of this submission. Was the said trial Courts view on Section 19 of the AJA a mere obiter dictum or part of the ratio decidendi

My Lords, permit me to re-iterate my views, for the Court of Appeal, in Ibrahim v Fulani and Ors (2009) LPELR-4279 (CA) 35 et seq. According to the Court of Appeal, [per Nweze, JCA, as he then was], the search for the meaning of ratio decidendi pokes into an aspect of a long-drawn debate in the epistemology of Jurisprudence and Legal Theory:
Somewhat, beneficially, the search has produced very robust and engaging disquisitions which are remarkable not only for the acuity of their premises and rigour of their logic, but also for the allurement of their syllogisms: Paton and Sawyer, Ratio Decidendi and Obiter Dictum in Appellate Courts.” (1947) 63 LQR 461, 481; Goodhart, Essays in Jurisprudence and the Common Law chapter 1; Glanville Williams, Learning the Law 71; Dias and Hughes, Jurisprudence 74; Lord Lloyd of Hampstead, Introduction to Jurisprudence 375; C. K. Allen, Law in the Making (seventh edition) 259-260; Hood Phillips, 4 First Book of English

17

Law (sixth edition) 202-203; Salmond, Jurisprudence 223, cited in P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd, 1984) 208; Rupert Cross, The Ratio in 20 MLR 124-116; A. G. Karibi-Whyte, The Tyranny of Judicial precedents, in (1990) Vol.3 No.1 Cal. LJ; Odiase v Agho (1972) 1 All NLR 170, 176; Savannah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198; 278-279; N.A.B Ltd v B. Eng (Nig) Ltd (1995) 8 NWLR (Pt 413) etc…
Now, the term ratio decidendi [plural: rationes decidendi] has not lent itself to a satisfactory definition, C. K. Allen, Law in the Making (supra) 259-260. It is not surprising, therefore, that the definitions proffered by Professors Hood Phillips and Karl Llewellyn have been subjected to scathing strictures. For Hood Phillips, ratio is the reason for the decision or the principle of law on which the decision was based, see, Hood Phillips, A First Book of English Law (supra) 202-203. Professor Karl Llewellyn argues that ratio decidendi is prima facie the rule of the case, since it is the ground upon which the Court chose to rest its decision, in

 

18

  1. U. Umoh, Precedent in Nigerian Courts (supra) 207.
    Professor Goodhart has punctured these definitions. In his Essays in Jurisprudence and the Common Law (supra), the distinguished jurisprudent contended that the ratio decidendi is neither the reason for the decision nor the principle of the law in the judgment. Ironically, Goodharts definition of the term, which Professor Glanville Williams adapted, has received further qualification. Professor Glanville Williams, adapting Goodharts definition had presented the matter thus: the ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon, Glanville Williams, Learning the Law (supra) 71, in P. U, Umoh, Precedent in Nigerian Courts (supra) 207.
    In their authoritative work, Jurisprudence, (supra) page 74, Dias and Hughes pointed out that:
    Goodharts theory implies that it is the deciding Judge who decides what are the material facts and that these can be discovered by a perusal of the judgment.
    Lord Lloyd of Hampstead aligns himself with this observation of the erudite jurisprudents, Lloyd, Introduction to

19

Jurisprudence (supra) page 375.
This may well be so! However, I must hasten to observe that the above criticisms have no utilitarian value for us since we are bound by the approach adopted by the Supreme Court to this question. That approach would appear to be an amalgamation of the views of Hood Phillips and the definition of Goodhart, as adapted by Glanville Williams. Thus, for example, Karibi-Whyte JSC in Savannah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198; 278-279 offered the following invaluable guides:
In determining the ratio decidendi of a case, it is safer to consider the claim before the Court and the issue which the Court was called upon to decide. Thus, the reasons given by the Court for deciding the claim before it is the ratio decidendi which the Court is obliged to follow in subsequent cases and will not lightly depart from unless to avoid the perpetuation of errors…Accordingly, opinions in the judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding…

[Italics supplied for emphasis]

In

 

20

Omisore and Anor v Aregbesola and Ors [2015] 15 NWLR (pt 1482) 205, this Court [per Nweze, JSC]
explained that:
In Legal Theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a Judges passing remarks which do not reflect the reasoning of the Court or ground upon which a case is decided, Paton and Sawyer, Ratio Decidendi and Obiter Dictum in Appellate Courts (1947) 63 LQR 461, 481; Rupert Cross, The Ratio in 20 MLR 124-126; A. G. Karibi-Whyte, The Tyranny of Judicial Precedents, in (1990) Vol.3 No.1 Cal. LJ; P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd. 1984) 208; Nwana v FCDA and Ors (2004) LPELR 2102 (SC) 12, F-G; Yusuf v. Egbe [1987] 2 NWLR (pt.56) 341; Amobi v Nzegwu [2013] 12 SCNJ 91.

As indicated above, counsel for the appellant contended that the issue of Section 19 of the AJA was, inextricably, tied to the application before the trial Court as well as the appeal before the lower Court, citing pages 2109 -2128 of the record for the Amended Notice of Appeal from the trial Court to the lower Court. He pointed out that

 

21

Grounds 2 and 5 were anchored on Section 19 of the AJA; also, issue one in the Amended Brief of Argument, pages 2177 – 2211 of the record; and the appellants application at the trial Court, written addresses in support of the application, pages 1705 -1782; 1864 -1901, respectively, of the record, which showed that the issue of Section 19 (supra) was intrinsic to the application which the trial Court was called upon to make a decision.

Against the above background, therefore, learned senior counsel for the respondent could not have been right in his submission. In my humble view, the appellants counsels submission is unanswerable: the said Section 19 of the AJA was intricately, interwoven into both the claim and the issue which the trial Court was called upon to resolve.

Regrettably, as the lower Court found at page 2318 of Volume V of the record, in agreeing with the submissions of the appellants counsel, the trial Courts view on Section 19 (supra):
…was done by the Court suo motu which violates the principle of fair hearing… Counsel were not invited to address the Court before the striking down

 

22

was done. It was done from the blues so to speak. Therefore, it cannot be allowed to stand. In this regard, I set aside that part of the decision striking down Section 19 of the Admiralty Jurisdiction Act, 1991.
[Italics supplied for emphasis]

In the first place, I affirm the findings of the lower Court that, having taken up the issue of the inconsistency of Section 19 (supra) with the Constitution, the trial Court did not afford counsel the opportunity of advancing arguments on the issue it so raised suo motu. That was a wrong approach.
It cannot be otherwise for it is now settled that where a Court raises an issue suo motu, the parties must be afforded the opportunity of offering arguments on it, Odiase v Agho (1972) 3 SC 71; Adegoke v Adibi (1992) 5 NWLR (Pt. 242) 410; Atanda v Akanmi (1974) 3 SC 109; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17. A violation of this canon is an invasion of the right to fair hearing, Oje v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566. It has actually been elevated to a miscarriage of justice, Owoso v Sunmonu (2004) 30 WRN 93, 106-107, Ojo v Anibire

 

23

(2004) 5 KLR (pt 177) 1205, 1207; Wilson v Wilson (1969) ALR 191.
Perhaps, an explanation is necessary here. In the interest of justice, the trial Court was entitled to raise issues suo motu, Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17 However, if it does so and unilaterally undertook the resolution of the said issues, it raised suo motu without hearing from the parties, it would have erred. This must be so for the law is now clearly settled that when a Court for any compelling reason, finds it necessary, and particularly in the interest of justice to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such a point or issue. This rule applies even with greater force in favour of the party that would be prejudiced as a result of the point raised without the prompting of any of the litigants in the case, Adegoke v Adibi (1992) 5 NWLR (pt 242) 410; Atanda v Akanmi (1974) 3 SC 109; Odiase v Agho (1972) 3 SC 71; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 77.
An infraction of this rule amounts to a flagrant breach of the aggrieved partys right to fair hearing as entrenched in the Constitution, Oje

24

v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566. Indeed, it equiponderates to a miscarriage of justice,Owoso v Sunmonu (2004) 30 WRN 93, 106-107; meaning, failure of justice, Ojo v Anibire (2004) 5 KLR (pt 177) 1205, 1207 or justice which is not in consonance with the law, Wilson v Wilson (1969) ALR 191 approvingly adopted in Ojo v Anibire (supra) 1214.
The lower Court, however erred in its effort to save the entire proceedings. It set aside only that part of the ruling that struck down Section 19 of the AJA. With respect that cannot be. This Court cannot allow such makeshift approach to the administration of justice. In the circumstance, I have a duty to purge the entire proceedings of the trial Court of such breaches which have the capacity of tarnishing the allure and purity of its decisions.
That is why I must flush out its proceedings. It is immaterial that they were brilliantly conducted. In a word, they constitute a travesty of justice, Owoso v Sunmonu (supra). The net effect is that I resolve this issue in favour of the appellant. This also, relieves me of the drudgery of the consideration of the other

 

25

issues. This must be so because of the view, which I expressed above, that the approach of the trial Court, as affirmed by the lower Court, was a flagrant breach of the appellants right to fair hearing as entrenched in the Constitution, Oje v Babalola(1991).
Thus, no matter how brilliantly the proceedings were conducted, I am under obligation to vacate them as a travesty of justice, Obawole and Anor v Williams and Anor (1996) LPELR -2158 (SC) 21; B-C; UNICAL v Essien (1996) LPELR – 3416 (SC) 65; B-D; Oje and Anor v Babalola and Ors (1991) LPELR-2368 (SC) 17; E-F; Seldon v. Bromfreld Justices (1964) 2 Q.B. 573, 78; Rex v. Hendon Justices (Ex parte Gorchein) (1973) 1 W.L.R. 1502; Okafor and Ors v. Nnaife and Ors [1972] 3 ECSLR 261; Ugo v. Obiekwe [1989] 1 NWLR (Pt.99) 566, 581; Kuti and Anor. v. Jibowu and Anor. (1972) 1 All NLR (Pt.II)180, 192.
Others include: Salawu Ajao v Karimu Ashiru and Ors (1973) 1 All NLR (pt II) 51, 63; Atanda and Anor. v Akanmi(1974) 1 All NLR (pt I)168, 178; Kuti v Balogun (1978) 1 LRN 353, 357; Olusanya v Olusanya (1983) LPELR -2630 (SC) 10; [1983] 1 SCNLR 134, [1983] 14 NSCC 97; D-G; Odedo v PDP and Ors

 

26

(2015) LPELR – 24738 (SC) 40 – 41; E-D; Prov. Liquidator, Tapp Ind. v. TAPP Ind [1995] 5 NWLR (pt.393) 9; Okonjo v. Njokanma [1999] 14 NWLR (pt. 638) 250, 265; Finnih v. Imade (1992) 1 NWLR (pt.219) 511; Kuti v. Jibowu [1972] 6 SC 147.
Other cases, also, include – Ochonma v. Unosi (1965) NMLR 325; Oyekanmi v. NEPA [2000] 15 NWLR (pt. 690) 414, 439; E – F; Governor of Gongola State v. Tukur [1989] 4 NWLR (pt.117) 592; Adegoke v. Adibi [1992] 5 NWLR (pt. 242) 410; Eholor v. Osayande [1992] 6 NWLR (pt. 249) 524; Ajuwon v. Akanni [1993] 9 NWLR (pt.316) 182; Hambe v. Hueze [2001] 4 NWLR (pt. 703) 372, 388; Ugo v. Obiekwe [1989] 1 NWLR (pt. 99) 566; [1989] 2 SCNJ 31; Abbas v. Solomon [2001] 15 NWLR (pt. 735) 144; [2001] FWLR (pt. 67) 847; Osasona v. Ajayi [2004] All FWLR (pt. 216) 443; [2004] 14 NWLR (pt.894) 527; [2004] 5 SCNJ 82; Fombo v. Rivers State Housing and Property Development Authority [2005] 5 SCNJ 213; Nobis- Elendu v INEC and Ors (2015) LPELR -25127 (SC) 76 -77; Kuti v Balogun [1978] 1 SC 53, 60; Obawole v Williams [1996] 10 NWLR (pt.477) 146; Stirling Civil Eng. (Nig.) Ltd. v Yahaya [2005] 11 NWLR (pt.935) 181; Omokuwajo v FRN [2013] 9 NWLR

 

27

(pt.1359) 300; Ominiyi v Alabi (2015) LPELR SC.41/2004; Ejezie and Ors v Anuwu and Ors (2008) LPELR -1063 (SC); Rekku Fulani and Anor. v. Ephraim Danladi Idi [1990]5 NWLR (pt.150) 311, 318; Oje and Ors v. Babalola and Ors. [1991] 4 NWLR (pt.155) 267; Dairo v UBN [2008] 2 WRN 1, 14 – 15; 35; Nteogwuile v. Otuo [2001] 16 NWLR (pt.738) 58; Adigun v. A-G., Oyo State (1987) 1 NWLR (Pt. 53) 678; [1987] 1 NSCC 346; [1987] 4 SC 272.
In all therefore, I hereby enter an order allowing this appeal. I hereby order the immediate remittance of the case file to the Chief Judge of Lagos State for re-assignment to another Judge of the High Court for the expeditious disposal of the case. Appeal allowed. Case file to be immediately remitted to the Chief Judge of Lagos State for re- assignment to another Judge.

MUSA DATTIJO MUHAMMAD, J.S.C.: I adopt the lead judgment of my learned brother CHIMA CENTUS NWEZE JSC, with whose reasoning and conclusion therein I entirely agree to allow this appeal. I abide by the consequential orders made in the said judgment.

28

 

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: My learned brother, CHIMA CENTUS NWEZE, JSC obliged me with a draft of the judgment just delivered. The reasoning and conclusion therein are in accord with mine.

Among the issues submitted to us for the determination of this appeal is the appellants issue 1, which reads:
Having regard to the lower Courts finding that the trial Court breached the principle of fair hearing in striking down Section 19 of the Admiralty Jurisdiction Act (AJA) whether the lower Court was not in grave error and so acted without jurisdiction when it thereafter failed to set aside the trial Courts ruling of 10th October 2014.

This issue is quite fundamental for it is well settled that any proceedings conducted in breach of a partys fundamental right to fair hearing, which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceedings null and void.
In Kotoye Vs C.B.N. (1989) 1 NWLR (Pt.98) 419 @ 488 C-D it was held thus:
The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done

 

29

because of lack of fair hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. The order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of natural justice which is expressed in the maxim: audi alteram partem.
See also: A.G. Rivers State Vs Ude & Ors. (2006) 17 NWLR (Pt.1008) 436; (2006) LPELR-626 (SC) @ 19 B  D; Odedo Vs P.D.P. (2015) LPELR-24738 (SC) @ 38  39 C-B; Hon. Justice Titus Adewuyi Oyeyemi (Rtd.) Vs Hon. Timothy Owoeye & Anor. (2017) LPELR-41903 (SC) @ 56 B  E.

It has been held severally by this Court that no Court, no matter how well-meaning, may raise an issue suo motu and resolve it without affording the parties an opportunity to be heard. The Court must confine itself to the specific issues raised by the parties and has no business considering an issue not properly before it. Raising and resolving an issue suo motu has the effect of making out a case for the parties which they did not make for themselves. A judge who raises an issue suo

 

30

motu without affording the parties an opportunity to be heard before resolving it, has in effect descended into the arena of conflict.
See: A.D.H. Ltd Vs Amalgamated Trustees Ltd. (2007) ALL FWLR (Pt. 392) 1781 @ 1807 E-F; Akinfolarin Vs. Akinnola (1994) 3 NWLR (pt. 355) 659 @ 680-681 H A; Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt. 1079) 172 @ 223 C  D; F.R.N. Vs Yau Mohammed (2014) 19 WRN.

In the instant appeal, it is not in dispute that in the course of ruling on a no case submission, the learned trial Judge suo motu struck down the provisions of Section 19 of the Admiralty Jurisdiction Act (AJA). The issue of whether or not Section 19 of the AJA was inconsistent with any of the provisions of the 1999 Constitution, particularly Section 251(1) & (3) thereof was not raised by either of the parties. The contention of the defendants at the trial Court was simply that the High Court of Lagos State lacked jurisdiction to entertain the matter having regard to the provisions of Sections 251(1) (a), (g), (n), (3), 272(1) of the 1999 Constitution; Sections 1(2) & 19 of the AJA and Section 8 of the Federal High Court Act. It was their

 

31

contention that the subject matter of the offences with which they were charged under Section 1 of the Advance Fee Fraud and Other Related Offences Act, 2006 and the Criminal Code Cap C.17 Laws of Lagos State of Nigeria 2003, related to admiralty matters in respect of which the Federal High Court, in their view, has exclusive jurisdiction. The legality of Section 19 of the AJA did not arise.

As observed in the lead judgment, the lower Court in considering the argument of learned counsel for the appellant that the trial Court ought not to have raised the issue of Section 19 of the AJA suo motu, held that the trial Court erred in striking down the section, it not being inconsistent with the provisions of the Constitution.
It however made the following finding at page 2318 of Volume V of the record:
“The learned trial Judge having held that it was not an admiralty matter before striking down Section 19 of the Act, there was therefore no need for the striking down, especially as it did not affect the jurisdiction of the State High Court with regards to this case in her findings.
Furthermore, this was done by the Court suo

 

32

motu which violates the principle of fair hearing. ….
Counsel were not invited to address the Court before the striking down was done. It was done from the blues so to speak. Therefore, it cannot be allowed to stand. In this regard, I set aside that part of the decision striking down Section 19 of the Admiralty Jurisdiction Act 1991.
(Underlining mine for emphasis)
It has been argued before us by the learned silk, Rotimi Jacobs, SAN at paragraph 4.43 on page 25 of his brief that:
the Court of Appeal, having upheld the decision of the High Court that the criminal charge the appellant is facing was not an admiralty matter, that decision stands clearly against the appellant until the finding that the case is not an admiralty matter is upturned, the appellant cannot correctly argue that the striking down of Section 19 of the Admiralty Jurisdiction Act affects his case.
(Underlining mine for emphasis)
This is a misconception. Having found that the appellants right to fair hearing was breached, the proceedings were a nullity and ought to have been set aside.
In Kotoye

33

Vs C.B.N. (supra) at 448 A-C, Nnaemeka Agu, JSC opined thus:
I did not, in my opinion consider the type of analysis which Chief Ajayi went into in this case relevant He tried to show that the main question was the appointment of directors. Nor need I consider whether or not the order as made was more beneficial to the appellant or the respondents. In my judgment, the over-riding question is whether in the orders relating to restraining the holding of the general meeting as well as touching on the appointment of directors, the respondents were, in the Court of trial entitled to be heard before the application was heard and the order made. Once I come to the conclusion that they should as I feel bound to do, it is no longer necessary to go into an analysis of the order made to find out whether or not it is beneficial to the applicant or whether it should have been granted if a hearing was had.
No matter how well conducted, once lack of fair hearing is established, the proceedings were rendered null and void. It is unfortunate that all the industry put in to this case by the parties and the learned trial Judge have come to naught for

 

34

failure to observe the principles of fair hearing.

It is for these and the more elaborate reasons advanced in the lead judgment that I allow the appeal and set aside the judgment of the lower Court.

The proceedings before A.L. Okunnu, J. of the High Court of Lagos State are also set aside. I abide by the consequential orders made in the lead judgment.

JOHN INYANG OKORO, J.S.C.: I have had the advantage of reading in draft the judgment of my learned brother, Chima Centus Nweze, JSC just delivered. His Lordship has meticulously and very exhaustively considered and resolved the salient and germane issue submitted for the determination of this appeal to wit.
Having regard to the lower Courts finding that the trial Court breached the principle of fair hearing in striking down Section 19 of the Admiralty Jurisdiction Act (AJA), whether the lower Court was not in grave error and so acted without jurisdiction when it thereafter failed to set aside the trial Courts Ruling of 10th October, 2014.

The learned counsel for the appellant had complained that the Court below, after holding that

 

35

the trial Court erred in striking down Section 19 of the Admiralty Jurisdiction Act when it raised the issue suo motu and failed to invite parties to have their say before resolving the issue, surprisingly, failed to set aside the said judgment.

The record shows that the Court below actually set aside the aspect of the judgment relating to the issue at hand when it stated at page 2318 of Vol. V of the record that:-
The learned trial Judge having held that it was not an admiralty matter before striking down Section 19 of the Act, there was therefore no need for the striking down especially as it did not affect the jurisdiction of the State High Court with regards to this case in her findings
Furthermore, this was done by the Court suo motu which violated the principle of fair hearing… counsel were not invited to address the Court before the striking down was done. It was done from the blues so to speak. Therefore, it cannot be allowed to stand. In this regard, I set aside that part of the decision striking down Section 19 of the Admiralty Jurisdiction Act 1991.

The law is trite that

 

36

it is not the function of any Court to raise suo motu issues not canvassed in the written brief or oral arguments of counsel before the Court to which counsel were not asked to address it on. This Court has always frowned at the practice. See Onifade v Olayiwola & Ors (1990) LPELR- 2680 (SC), Mojekwu v Iwuchukwu (2004) LPELR-1903 (SC), Odedo v PDP (2015) LPELR-24738 (SC).

The view by the learned counsel for the Respondent that the issue was a mere obiter dictum does not fly at all because taking a careful look at the entire judgment; the issue was indeed part of the ratio decidendi of the judgment. His Lordship, Chima Centus Nweze, JSC has made a treatise on it in the lead judgment which I may not be able to improve on it. I rather adopt it as mine.

My view is that since the decision of the learned trial Judge was based on an issue raised and decided suo motu, the entire judgment ought to have been set aside because the parties were denied fair hearing. The issue is not whether injustice has been done because of the lack of a hearing. It is whether a party entitled to be heard before had in fact been given an opportunity of being heard. It

 

37

is the law that a judgment obtained against the principle of fair hearing, no matter how well conducted, written and delivered with eloquence, is a nullity. It is not worth more than the paper it is written. See Kotoye v Saraki (1994) LPELR – 1708 (SC), (1994) 7 NWLR (pt.357) 414.

Based on the above and the more elaborate reasons advanced in the lead judgment, I agree that this appeal has merit. It is hereby allowed by me. I abide by all the consequential orders made in the lead judgment. I make no order as to costs.

EJEMBI EKO, J.S.C.: My learned brother, C.C. NWEZE, JSC, had availed me, before now, the draft of the Judgment just delivered. I participated in the conference culminating in this Judgment. I have nothing further to add to the Judgment. I hereby adopt it.

In another appeal: SC.518/2015; ONTARIO OIL & GAS NIG. LTD. v. FRN, the Judgment in which was delivered on 26th January, 2018 it was ordered, on different grounds, that the matter be heard de novo by another Judge of Lagos State High Court. This appeal and the said appeal No. SC. 518/2015 have the same substratum.

The appeal, herein,

 

38

succeeds on the issue of fair hearing denied to the Appellant by the trial Court. There is no further use considering the other issues. On this issue of fair hearing alone, the appropriate consequential order, in the circumstance, is an order remitting the case to the trial Court to be heard de novo by a Judge of Lagos State High Court other than the Judge whose decision is the subject of this appeal, as shall be assigned by the Chief Judge of Lagos State. This I so order.

 

39

Appearances:

Yusuf Asamah Kadiri, FCIArb, with him, Edoka Onyeke Esq., Ayo
Adesanmi Esq., Wole Okenile Esq., Adetola Adeleke,
Esq., Oluwafikunayo Taiwo (Miss), Esq., Oreoluwa
Ogunwunmiju Esq. For  Appellant(s)

Rotimi Jacobs, SAN with him, Adebisi Adeniyi, Esq.
For  Respondent(s)

 

Appearances

Yusuf Asamah Kadiri, FCIArb, with him, Edoka Onyeke Esq., Ayo
Adesanmi Esq., Wole Okenile Esq., Adetola Adeleke,
Esq., Oluwafikunayo Taiwo (Miss), Esq., Oreoluwa
Ogunwunmiju Esq. For Appellant

 

AND

Rotimi Jacobs, SAN with him, Adebisi Adeniyi, Esq. For Respondent

 

Leave a Reply

Close Menu
×
×

Cart